Yesterday, Barack Obama was inaugurated as the 44th president of the United States of America. One open question for the Obama administration is will Obama continue to crack down as heavily as the Bush administration on drug-related paraphernalia?
Over a Reason Online, Jacob Sullum details the modus operandi of the outgoing administration and its implications on speech. It’s a great read.
The raging debates of the drug legalization aside, one has the wonder about the efficacy of enforcing paraphernalia laws. Cops — here’s a protip: If you take the sweet bong with the Greatful Dead logo on it away from the couple of pot smokers, they will fashion one from a 2 liter bottle or something much less snazzy. All you’ve really done is given them a big bummer.
Sullum has it correct when he asserts that what the anti-drug types hate most are the headshops that operate quasi-legally by offering their goods for dual uses. Sullum’s exposition of the law around the legality of selling these dual-use items in headshops shows just how murky the law is in these areas. The only cure, in my view, is for the government to retreat on this ground.
One of my main clashses with general libertarian principles is the steadfast and widely-held view of libertarians that drugs ought to be legalized. I’m not prepared to go that far. In law school, we are often challenged to balance shifting interests between individuals and the government in our minds so that our we may begin to analyze what the law should be.
I don’t believe there is any “balancing test.” Cognitive scientists often describe this process as ordering — placing values above another. In this ordering scheme of mine, I choose to place the relative security of people first. Drugs, especially hard drugs, have several significant negative effects on society. I certainly know the counter-arguments. That if drugs were legal, most of negative effects associated with doing drugs (crime, violence) would go away. However, these are hypothesized outcomes. Until I see some compelling evidence not originating from an interested group, the line is clear for me. Drugs are bad, mmkay. At least right now.
Government should not regulate paraphernalia — it has failed to realize its goals of reducing drug use and has implemented the law in a vague and over-broad way. Right now, it isn’t clear to even the most prolific of weed smokers and paraphernalia expert Tommy Chong what conduct is punishable under these laws. It’s ridiculous. Here’s hoping that our new administration recognizes the futility and arbitrariness of these laws and retreats from their enforcement.
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The Legal Satyricon 
I’m sorry, but I’m somewhat biased against this common grammar mistake, so to preserve my sanity I need to mention it. In the phrase “it has failed to realize it’s goals” the “it’s” should have been “its”.
I dunno, I agree that certain drugs are harmful. For example, nobody can tell me with a straight face that crack is something that is just used recreationally – and there is no real harm.
Nevertheless, looking at crack addiction as a criminal issue, instead of a public health issue, is a doomed policy. I think crack is bad, mmkay, but locking up crackheads isn’t the answer. (Well, unless the crackhead commits another crime).
Canada and the Netherlands have had great success with the public health vs. criminal enforcement issue. Here in the USA, Massachusetts has decriminalized marijuana (which nobody can actually say has a negative societal impact). I think that if we inject some sanity into our drug policy, instead of letting it be driven by those with a profit motive for harsher penalties, like law enforcement and private prison companies, we will see illegal drugs for what they are — simply untaxed versions of what you get a CVS.
Jozef – mea culpa, totally missed it at 2AM. I’m open to whether drugs should be criminalized as an offense by themselves. Most of my beef with decriminalization lies with the crack / meth crowd.
No evidence? Really? Did you forget every lesson learned during alcohol prohibition, or do you think alcohol is not a drug?
P.S. Government’s own statistics show only 30% of crack users are addicted. That’s lower than cigarettes.
Wow, really? Perhaps my perception of crack is unduly alarmist. I’m still not interested in trying it, but if it is something that can be used in a controlled and mature manner, then I’m all for people having the freedom to make that choice — for good or for ill.
I have to somewhat agree on the over-hyped positive effects of legalizion. I live in Nevada, about a 20 minute drive from 2 legal brothels. And yet I still see streetwalking prostitutes downtown. One of the constant legalization arguments is tax it and pay off the deficit. But when you artifically raise goods above their market value (and move them to a purposefully inconvient location like we do with other legal adult enterprises) a black market will result.
On paraphanelia and ‘meth’ I think prohibition has had pretty dissastrous harm incresing effects. Vaporizers have harm reduction potentil but I don’t want to be caught with one. And as you say, improvising implements leads to dangerous ideas like JB welding together some plastic and tin foil – and then applying heat and inhaling the vapors. 15 years ago I used to see people using speed as a club drug, and holding thier lives together otherwise. But these are chiral molecules, you cannot tell me that today’s auto parts store Chem E’s are acheiving sterospecificity using drain-o and sudafed. I suspect a bathtub gin effect is at least in part responsible for the waste of life that has become today’s “meth” users.
Due to the law of unintended consequences, I believe a balancing test approach is appropriate to the arguement. If you are doing more harm than good, isn’t that worth considering? But I suspect my real problem with your ordering test idea is that those doing the ordering will likely have no personal interest in doing drugs, esspecially embarasing low class ones like meth. So they are likely to assign zero value to drug use and come away with an unworkable solutiuon when it is applied to individuals who do place value on drug use.
I think the reasoning behind the criminalization of drug paraphrenalia is two fold. First, it is kin to the search and seizure rule stating “where there are drugs, there are guns” and visa versa. Thus, the state’s interest in criminalizing paraphrenalia is to allow for probable cause to search for the actual drugs and to prohibit the use of the object. Second, since using drugs is not illegal…the state chooses to criminalize the instrumentation of use. So, the cops cannot remand you based on you being high (assuming you are not breaking another lawa) but they can arrest you for possession of the paraphrenalia or possession of the drug.
The paraphrenalis law is broad. As you pointed out, if you take the glass blown bong…the stoners will fashion something else….well, both are paraphrenalia. The object is not illegal…it is the use of the object that transforms the nature of the piece of “smoke accessory.”
I agree that a lift of prohibition on drugs is a bad idea…but I think some of the “controlled substances” could be easily regulated and controlled like our hop based amber liquid. However, so long as drugs are illegal, paraphrenalis laws will exist.